Monday, February 11, 2008

Drop Kick Me Jesus Through the Goalposts of Copyright

In 1976, country and western singer Bobby Bare a song written by Paul Craft called “Drop Kick Me Jesus Through The Goal Posts of Life.” The song appeared on his album “Winners and Other Losers.” Here are the first two verses:

Drop kick me Jesus through the goal posts of lifeEnd over end neither left nor to rightStraight through the heart of them righteous uprightsDrop kick me Jesus through the goal posts of life.Make me, oh make me, Lord more than I amMake me a piece in your master game planFree from the earthly temptation belowI’ve got the will, Lord if you’ve got the toe.

(The entire lyrics and an mp3.com version of the song may be found here).

There is a surprising amount of exegesis on this song, including this from one, surprisingly from the West Coast (sometimes called the Left Coast). The Pacific Theological Society from Berkeley, California writes on its website).

With football providing the basic metaphor, Jesus is portrayed as both leader (the strategist with a master game plan) and player--the one who kicks the ball for a field goal. This is a wonderful intertwining of prophet, priest and king. Jesus is on the field with us, able to be where we are, but also bringing divine revelation which will be revealed to his team, and with the power (athletic prowess) to provide the grace for the willing supplicant to attain the righteousness needed. The football's inability to kick itself emphasizes the need for grace and divine intervention, which Jesus is there to provide.The importance of the Body of Christ is also brought in, this is not just a "me and Jesus" endeavor, but the communion of saints has a role. The salvation of one individual requires a team effort. This setting includes the concept of an opposing team--"the enemy."There is, a certain ambiguity in the time factor here. The desire to go through the goal posts suggests the aim of achieving righteousness and a "holy death." But the idea of being part of the "master game plan" when "free from the earthly temptation below" suggests activity in the after-life. The communion of saints, and their role in the "offensive line" may be for now, to protect the kick, to ensure no interference in the field goal, and/or for the master game plan that is for the time when they are free. Perhaps it is for both times.This is indeed making wine out of water.

What you may ask do football and Jesus have to do with copyright? Plenty, as this article in the February 7th Washington Post shows:

Bill Would End Separation of Church and Super BowlJacqueline L. SalmonWashington Post Staff WriterThursday, February 7, 2008; Page A06Sen. Arlen Specter, the top Republican on the Senate Judiciary Committee, introduced a bill this week that would allow houses of worship to show football games on big-screen televisions.The legislation was among a flurry of action taken this week as the result of an article Friday in The Washington Post reporting that churches were canceling Super Bowl parties out of fear of lawsuits from the NFL if they showed the game on jumbo TV screens.The league has sought to enforce its copyright of the Super Bowl by sending letters to churches warning them that showing the game on big-screen sets violates the league's copyright. The NFL allows sports bars to show the game on large TV sets but objects to similar viewings by other out-of-home large assemblies.Under Specter's legislation, religious organizations that wish to show professional football games would be declared exempt."The legislation simply provides churches with a limited yet justifiable exemption to allow them to bring their congregation together to watch the Super Bowl," Specter (R-Pa.) said in a floor statement when he introduced the legislation Monday. "In a time when our country is divided by war and anxious about a fluctuating economy, these types of events give people a reason to come together in the spirit of camaraderie."NFL spokesman Brian McCarthy said that the league is reviewing the bill. Specter is also expected to raise the issue with NFL Commissioner Roger Goodell when he meets with him soon to discuss the league's investigation of the spying scandal involving the New England Patriots.Other legislators are also weighing in.Rep. Heath Shuler (D-N.C.), a former Redskins quarterback and evangelical Christian who has spoken at church Super Bowl parties, plans to introduce legislation similar to Specter's in the House by the end of the week, a Shuler spokesman said yesterday.And Rep. Paul Broun (R-Ga.) said he is talking to the NFL about coming up with a legislative or nonlegislative solution to the situation. Broun spokesman Derek V. Baker said Broun has received numerous calls from constituents in his Bible Belt district expressing concern about how the law would affect their churches' Super Bowl events."We just want to make sure that churches are not being unfairly discriminated against," Baker said. "We want them to be treated fairly."This week, a group of Christian leaders also wrote to Goodell, calling on the NFL commissioner to allow churches to show league games on their large television screens."The NFL allows the Super Bowl and other NFL games to be aired on Sundays in bars and even in casinos as hundreds stand by gambling on the outcome," the letter said. "Yet it is churches the NFL chooses to crack down on?"The NFL needs to "rethink the whole process and what they're trying to accomplish," said Gary L. Cass, chairman of the San Diego-based Christian Anti-Defamation Commission. Others who signed the letter included Paul M. Weyrich, chairman of the Coalitions for America, and the Rev. Louis P. Sheldon, chairman of the Traditional Values Coalition.NFL spokesman McCarthy said that as long as churches do not charge for the event and do not use televisions that exceed the 55-inch maximum size set out in the copyright act, "we have no objection to special, one-time Super Bowl parties, whether at churches or any other location."

It is hard to see how churches are being discriminated against or treated unfairly as Representative Baker wondered, if, as the NFL stated, the same rule, a maximum of a 55 inch set, applies to everyone. That size is of course arbitrary, and is based on the exemption in Section 110(5) for a “single receiving apparatus of a kind commonly used in private homes.” That size is increasing along with mortgage defaults, but so long as the standard is a flexible one, adaptable over time, the size will never be fixed. (Certainly was provided for the size of the venue in the 1998 amendments to Section 110(5), but those amendments led to an adverse WTO panel ruling). The purpose of the initiative seems to be to treat churches more favorably, not to reverse treatment that unfairly singles them out.

Here is the text of the bill, which seeks to amend Section 110(5):

Section 110(5) of title 17, United States Code, is amended-- (1) in subparagraph (A), by inserting `or (C)' after `(B)'; (2) in subparagraph (B)(v), by adding `or' after the semicolon; and (3) by adding at the end the following: `(C) communication by an entity defined under section 3121(w)(3)(A) or (B) of the Internal Revenue Code of 1986 of a transmission or retransmission embodying a performance of a professional football contest intended to be received by the general public, originated by a radio or television broadcast station licensed as such by the Federal Communications Commission, or if an audiovisual transmission, by a cable system or satellite radio, if-- `(i) no direct charge is made to see or hear the transmission or retransmission; `(ii) during the communication no money is accepted or received by the organization; and `(iii) the transmission or retransmission is not further retransmitted by the establishment where the transmission or retransmission is received.'.

Here are Senator Specter’s remarks in introducing the bill:

Mr. SPECTER. Mr. President, I rise to introduce legislation which would modify the limitations on churches showing the Super Bowl under the NFL copyright franchise. Churches across the country were notified by the NFL not to show the Super Bowl on a big screen because it infringed their copyright. There is an exception under the copyright laws for bars. It is anomalous that you can go to a bar and see the Super Bowl, but you cannot go to a church for a social gathering and do the same. This legislation will correct that. Mr. President, I ask unanimous consent that my full statement be printed in the Record: Few images are more distinctly American than that of a religious community coming together not only in prayer but in fellowship to watch a major sporting event. For years, houses of worship across this country have opened up their doors and welcomed their congregation into their halls to watch the Super Bowl. They have provided families with an alternative to going to the local bar down the street to cheer for their favorite team. However, if the National Football League has its way, such gatherings will come to an end. A strict reading of the copyright code prohibits virtually anyone from bringing a large group of people together and watching the Super Bowl. The one exception to this general rule is ``food service and drinking establishments.'' This exemption allows sports bars to show a sporting event, so long as they do so on screens that do not exceed fifty-five, 55, inches. Although the law is nearly impossible to enforce for Super Bowl parties held in places other than food service and drinking establishments, the NFL has turned its sights on churches and other houses of worship, which use the large screens normally reserved for displaying hymns to show the Super Bowl to their congregation.Over the past several years, the NFL has begun sending churches across the country cease-and-desist letters, warning them not to show the game on their big-screen televisions and threatening them with a copyright infringement suit if they do. These religious establishments--many of which do not have enough money to even think about defending themselves against a giant such as the NFL--have had little choice but to shut down these gatherings.This is unfortunate because many houses of worship have used these events to reach out to their members, as well as potential new members, particularly young people. As Reverend Thomas Omholt, senior pastor of St. Paul's Lutheran in Washington, DC, stated in a recent Washington Post article, ``It takes people who are not coming frequently, or who have fallen away, and shows them that the church can still have some fun.'' These churches do not charge their members to watch the game nor have they used them as fundraisers. Rather, these events provide churches with a means of connecting with the greater community and new potential members of their congregation. The uniqueness of these events is underscored by the fact that these churches do not use the Academy Awards or other popular television programming as a means of outreach.When Congress created the sports bar exemption in 1998, they did so based on the rationale that the display of copyrighted performances--such as football games--in sports bars and similar establishments did not negatively impact the overall viewership for the game and value of the rights to the game. The same rationale applies to churches. Allowing churches to show the game would not diminish the overall viewership for the Super Bowl. If anything, it increases the viewership by making it a social event and bringing people out to watch the game who might not have watched it at home or in a bar.Today, I am introducing legislation that will create a new exemption for religious establishments. This legislation will provide churches and other houses of worship with the protection that they need to gather to watch the Super Bowl without fear of being sued for copyright infringement. This exemption will have limitations. For example, in order to qualify for the exemption, a church may not charge a fee to view the game. This will ensure that religious establishments do not unfairly profit from the NFL's copyright. Further, the exemption only applies to the live broadcast of a professional football game at the church or house of worship. A church may not tape the game to show at a later date or rebroadcast the game to another location. In other words, the legislation simply provides churches with a limited yet justifiable exemption to allow them to bring their congregation together to watch the Super Bowl.I am aware that some may argue that this bill implicates constitutional concerns. This is not the first time that we have recognized the unique needs of the religious community in the Copyright Code. Indeed, the section of the Copyright Code that we are amending already has an exemption for houses of worship and other religious assemblies for the use of copyrighted works of a religious nature. Although the Constitution does not require the creation of an exception in this case, it is reasonable to pursue one. In preparing this measure, my staff has researched the issue and spoken with some of the foremost experts in the field of First Amendment law. They share our view that this legislation appears consistent with the Establishment Clause of the Constitution. This legislation will not further entangle Government with religion but instead accommodates the needs of houses of worship and recognizes their important role in the communities they serve.In a time when our country is divided by war and anxious about a fluctuating economy, these type of events give people a reason to come together in the spirit of camaraderie. We, Congress, need to recognize the unique need that these events satisfy and provide religious establishments with the protection that they need. I urge my colleagues to join me in this effort.

It is difficult to see how there is a religious imperative that churches need to have a TV screen 200 inches large to have their congregants watch the very secular Superbowl (think the religious groups' uproar about the infamous wardrobe malfunction) while, say, the Elks or the Moose (or any other fraternal organizations named after animals with large horns) have to be satisfied with 55 inches; I assume members of those groups are pretty chummy with each other too, exhibiting the requisite “spirit of camaraderie” and solace in these difficult times. This is not to say that all nonprofits groups shouldn’t be able to watch free broadcast sports games with a 1,000 inch screen so long as there is no direct or indirect benefit obtained; it is only to note that churches seem an odd choice for such manna. One could truly without discrimination amend Section 110(4) to treat all nonprofit groups the same, something that would definitely withstand constitutional challenge.

I don’t know the esteemed First Amendment experts consulted, but it should be noted that the only copyright law ever struck down as unconstitutional was one struck down on Establishments grounds, United Christian Scientists v. Christian Science Bd. of Directors, First Church of Christ, Scientist, 829 F.2d 1152 (D.C. Cir. 1987)(extending the term of protection for the works of Mary Baker Eddy).

21 comments:

I think a fair number of evangelical "mega-churches" these days have giant screens, the kind that are 20 feet tall, so that they can project the preacher to the back of the hall. My guess is that one of these churches was showing sports on the screen and someone else objected. In my experience, few other locations have these sorts of screens already. Your local arena does, of course.

The idea of a Superbow exemption for Churches is just plain silly. This won't help churches with other copyright infringement claims when they use their 55" plus tv's the rest of the year and it seems like an unlawful taking from the NFL, since regardless of whether the church charges money for a superbowl party people may choose the free church function over venues that have paid fees to the NFL for the right to show the game on large screens. But then, I don't think churches should get all the tax deductions they currently do, either, especially for the high salaries paid to certain preachers who live in luxury.

There are, however, already church exemptions in copyright law for public performance of songs, as Mr. Patry knows far better than I:

Notwithstanding the provisions of section 106, the following are not infringements of copyright:

(3) performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly;(4) performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if—(A) there is no direct or indirect admission charge; or(B) the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance under the following conditions:(i) the notice shall be in writing and signed by the copyright owner or such owner’s duly authorized agent; and(ii) the notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for the objection; and(iii) the notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation;"

Of course in this case "public performance" means reading, singing or acting out a work rather than playing back a recorded work--churches still have to pay royalties for copyrighted recorded music they play--royalties they still might have to pay for the music in the Superbowl and the commercials even if they are granted permission to play the NFL game since the copyrights for the music, especially that in the commercials, are not owned by the NFL. Hopefully all the churches will have current ASCAP/BMI licenses for public playback :-)

As much as I'm against a special superbowl exemption for churches, the whole idea of a screen size limit that suddenly invokes copyright infringement when exceeded is just silly--especially since the limit has not kept pace with technology. There really needs to be a reexamination of this issue as a whole rather than just narrow exemption for churches to play NFL games!

The church isn't a food and drinking establishment, nor is it an establishment of any kind, in fact, as that term is defined in the Act:

An “establishment” is a store, shop, or any similar place of business open to the general public for the primary purpose of selling goods or services in which the majority of the gross square feet of space that is nonresidential is used for that purpose, and in which nondramatic musical works are performed publicly.

This would seem to me that 110(5)(A) is applicable. There's plenty of of big tv sets now, as well as consumer video projectors, that could be covered here.

In this case, Anon, the answer is the sets at issue are huge, well exceeding 55", the limit set out in the statute under 110(B), and under (A), they are not a single receiving apparatus of a kind commonly used in private homes.

Well, that's the thing. First, since the churches aren't section 110 establishments, the 55" limit is never relevant; they're never eligible for that part of the exception. Even if the screen was 10", 110(5)(B) would be useless for them. So we can ignore it altogether.

But there are big screens that use consumer equipment. You can go to BestBuy and get a home theater projector that can throw a 25 foot image. What qualifies as homestyle is rather vague, I admit, but the church would seem to have a pretty good argument if they used gear that was sold to consumers and marketed for in-home use. I know several people who have this kind of equipment in their home theaters, and if I had the space, I would too.

The size of the image you can display is increasingly not a factor in whether you're talking about home use or not. The size of the venue is -- not many people have a room with a big enough wall to put the screen on -- but 110(5)(A) is silent on wall size.

While you might claim that the display device is separated from the receiver, so the display wouldn't qualify for (5)(A), I find that unlikely, as it would also prevent the use of external cable, satellite, and HDTV tuners.

All this focus on churches and none on football. O.K., maybe we should draw the line at the World Poker Tour but what about real football (i.e. the World Cup)or the WWF, or the national pastime of baseball or some HBO boxing matches or what about women's beach volleyball - - the attack of the 50 ft women in the Crystal Cathedral!

Anon, you're right that 110(5)(B) doesn't apply to churches because of this definition in Section 101 of "establishment"

An “establishment” is a store, shop, or any similar place of business open to the general public for the primary purpose of selling goods or services in which the majority of the gross square feet of space that is nonresidential is used for that purpose, and in which nondramatic musical works are performed publicly.

It bears noting that the actual text of Sen. Specter's amendment says nothing about churches or other religious establishments. Rather, as written, it exempts all nonprofit performance of football broadcasts, period. Church-hosted Superbowl parties are the poster child for this amendment, but Elk lodges, et al benefit from it just as much. And it covers anyfootball broadcast, not just the Superbowl. Wonder if that includes soccer?

Brian, I believe you are incorrect in stating that the bill goes beyond churches: here is the relevant provision of the Internal Revenue Code referenced:

(A) For purposes of this subsection, the term “church” means a church, a convention or association of churches, or an elementary or secondary school which is controlled, operated, or principally supported by a church or by a convention or association of churches.

(B) For purposes of this subsection, the term “qualified church-controlled organization” means any church-controlled tax-exempt organization described in section 501(c)(3), other than an organization which--

(i) offers goods, services, or facilities for sale, other than on an incidental basis, to the general public, other than goods, services, or facilities which are sold at a nominal charge which is substantially less than the cost of providing such goods, services, or facilities; and

(ii) normally receives more than 25 percent of its support from either (I) governmental sources, or (II) receipts from admissions, sales of merchandise, performance of services, or furnishing of facilities, in activities which are not unrelated trades or businesses, or both.

I hate to get into this so late, or to betray ignorance, but riddle me the following:

1. What does the 55 inch criterion have to do with the Super Bowl? 110(5)(B) was part of the 1992 "Fairness in Musical Licensing Act," which related to a particular type of copyrighted works--nondramatic musical works. The Super Bowl (R) telecast is not a nondramatic musical work. Granted, the preamble of 110(5)(B) is poorly written ("a transmission embodying a performance or display of a nondramatic musical work"), but are you arguing that 110(5)(B) provides an exemption with respect to all copyrighted works? If so, I am interested.

2. Why do you say a large screen TV is not a single receiving apparatus of the type commonly used in the home? Anonymous is correct that the type of TV commonly used in the home is getting larger and larger (and there is nothing in 110(5)(A) that says it is tied to a particular point in time, is there?)?

3. Could a church group be less than "a substantial number of persons outside of a normal circle of a family and its social acquaintances"? If so, am I correct that the exemptions would not enter the calculus?

4. What happened to consideration of fair use in the discussion? The people watching at the church are also exposed to the commercials, and thus are essentially paying the NFL's exclusive licensee (Fox in 2008) for the right to watch the game. What is the adverse effect on the market for the work? Isn't the nature of the use within the scope of use that is contemplated--watching the game and paying by watching the commercials?

5. Is there a risk that enactment of the bill would imply that a new exception was needed, because other exceptions/ limitations don't apply? Is that a good idea?

I am honored to have the illustrious Bruce J. comment, at any time. Here, seriatim, are my responses to your questions:

1. I agree that 110 doesn't, as written, have anything to do with the Superbowl. It is Senator Specter who thinks his amendment will cover it.2.I don't think I said that all large screen TVs aren't a single receiving apparatus of a kind commonly used in private homes; the recent Superbowl led to the sale of many big screens. I have two 52 inch plasmas. Under A, the size can change over time, but not under B, where it is fixed at 55 inches.3.I don't think the mega churches at the heart of the issue could qualify as a small group, understanding that we are all part of God's flock.4.I would love to see a fair use opinion you would give under these facts.5. Since I think an amendment is necessary to accomplish Senator Specter's goals, I don't see any risk.Thanks for the comments and questions.

1. Careful, I did not refer to all of section 110 or even all of section 110(5) in my question. I referred only to 110(5)(B). I assume you would agree that 110(5)(A) would apply to the Super Bowl, no?

2. What do you know about the TVs that were the subject of the NFL letters that makes you say they are not "of a kind commonly used in private homes"? I was, of course, talking about (A), not (B) in the question. BTW, your TVs are bigger than mine!

3. What do you know about the churches that received NFL letters that would cause you to describe them as "mega churches"? BTW, where in the definition of "public performance" does it say the group must be "small"? I assume your circle of social acquaintances is quite large!

4. Perhaps that could be arranged, for an appropriate fee.

5. If the goal is certainty for churches in the performance of telecasts of football games on devices that do not qualify under 110(5)(A), that likely is true--at least until one of them is sued and successfully sustains a fair use defense.

1. I too was careful in my reply on the A/B distinction and was merely replying to your always careful distinction about the limited nature of the 1998 amendment. I agree on A. 2.I don't know anything directly about the TVs at issue, but had inferred from the news stories (and there were comments to the posting about this too) that what was at issue were really big screens for really big churches. It may be that the 55" figure is the practical rule of thumb for A too, although I don't know that. ASCAP and BMI have in the past disagreed on the figure, but they would be a good place to start. My Riedel glasses are bigger than yours too.3.I was using small as a "short"hand (pun intended). 4. I've seen your bills.5. Given the generous nature of your spirit (pun intended), I would hope you would offer to help Senator Specter accomplish his objective.

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This is a personal blog, not a Google blog. It is about my book Moral Panics and the Copyright Wars, published by Oxford University Press. Please don't attribute anything in the blog or the book to Google, which employs me.